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Thibault v. Anaheim Gen. Hospital

Filed 2/21/08 Thibault v. Anaheim Gen. Hospital CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed.

Irene Thibault, in pro. per., for Plaintiff and Appellant.

Fisher, Sparks, Grayson & Wolfe, Jerry R. Sparks; Greines, Martin, Stein & Richland LLP, Robert A. Olson; Ballard, Rosenberg, Gofper & Savitt LLP, and Linda Miller Savitt for Defendant and Respondent.

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Plaintiff Irene Thibault appeals from a judgment entered against her after a jury found defendant Anaheim General Hospital, L.P., did not wrongfully terminate her. Because plaintiff failed to designate the reporters transcript as part of the record on appeal, we cannot evaluate her claims of insubstantial evidence and jury instructional error, and therefore affirm the judgment. In addition, we deny defendants conditional motion for appellate sanctions because defendant failed to adequately argue the issue.

FACTS

Plaintiff sued defendant and other parties for wrongful termination in violation of public policy (whistleblowing), wrongful termination in violation of public policy (refusing to engage in unlawful conduct), and violation of Health and Safety Code section 1278.5 (which prohibits a health facility from retaliating against an employee who has presented a grievance or cooperated in an investigation by a governmental entity). In her complaint she alleged (1) defendant hired her as director of perinatal services around June 21, 2004; (2) two and a half months later she received at least two written incident reports [alleging] medical malpractice committed by [a] doctor . . . , including allegations that [he] cut open babies faces with a scalpel during delivery, (3) plaintiff complained to defendants chief executive officer about this alleged malpractice but he instructed her to destroy the incident reports rather than submit them to defendants quality risk management department; and (4) after plaintiff refused to destroy the reports, defendant terminated her.

Plaintiff submitted to the court proposed jury instructions consisting of 27 special instructions as well as many Judicial Council of California Civil Jury Instructions (CACI). Defendant submitted its own proposed special and CACI instructions. A minute order reflects the court and counsel discuss[ed] jury instructions, and [p]laintiffs special instructions [were] denied.

To the question Was plaintiff Irene Thibault wrongfully terminated by the defendant hospital? Eleven jurors answered No. The court entered judgment against plaintiff and awarded defendant costs.

DISCUSSION

On appeal plaintiff contends the court erred by failing to instruct the jury with her requested special instructions and failing to consider all the facts in the case or to recognize that defendant terminated her in retaliation for her refusal to destroy confidential event reports.[1] She further argues the jury misunderstood the facts in the case and the impact on patient safety.

But plaintiffs failure to provide us with a reporters transcript is fatal to her contentions. It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) In addition, [i]t is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Plaintiff has failed to meet either burden. Because she failed to provide this court with a record adequate to evaluate [her] contention[s], we must reject her claims. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) In the absence of a reporters transcript, unless the alleged error appears on the face of the record, all intendments will be made in support of the judgment. (Dumas v. Stark (1961)56 Cal.2d 673, 674; Cal. Rules of Court, rule 8.163.) And although plaintiff is acting in propria persona, she is not entitled to special treatment and is required to follow the rules. (McComber v. Wells (1999) 72 Cal.App.4th 512, 523.)

The foregoing principles apply to defeat plaintiffs allegations of evidentiary and instructional error. An appellant challenging the sufficiency of the evidence who fails to provide all material evidence on the point waives the alleged error. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) As to the claimed instructional error, we have no way of knowing whether the requested instructions found support in the evidence, or whether they were cumulative in light of other (unknown) instructions that were given. Moreover, [i]n the absence of [an adequate] record, we have no way of ascertaining whether it is reasonably probable that . . . the alleged . . . instructional error affected the outcome of this case. (Ballard v. Uribe, supra, 41 Cal.3d 564, 574.)

On appeal defendant conditionally moved for appellate sanctions of $8,544.52 on the ground plaintiffs appeal is frivolous. Defendants motion was conditioned on plaintiff requesting oral argument; i.e., defendant stated it would not request sanctions if plaintiff waived argument. Plaintiff requested oral argument and filed a written opposition to defendants sanctions motion, arguing, inter alia, defendants efforts to settle during the appeal procedures show the appeal is not frivolous. As evidence of defendants settlement efforts, plaintiff attached a copy of defendants letter to plaintiff offering to make no further effort to collect on the outstanding balance owed by plaintiff in exchange for plaintiffs dismissal of the appeal with prejudice.

In its motion defendant stated the frivolous nature of the appeal is demonstrated in [defendants] brief. But defendants motion for sanctions and its respondents brief do not contain any legal argument as to what constitutes a frivolous appeal; therefore we treat [the motion] as waived. (McComber v. Wells, supra,72 Cal.App.4th at p. 522.)

DISPOSITION

The judgment is affirmed. Defendants motion for sanctions is denied. Defendant shall recover its costs on appeal.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] As to her claim of instructional error, plaintiff points to four special instructions she requested relating to the alleged duty of a registered nurse to report incidents affecting patient health and safety; the statutory prohibition against alteration of medical records with fraudulent intent; the alleged prohibition against termination of employees for reasons contrary to the law or public policy; and the statutory prohibition against a health care facility terminating an employee for making complaints regarding patient care.